CTC Corner: New Legislation Authorizes Payment for Student Teaching

CTC Corner: New Legislation Authorizes Payment for Student Teaching

by | Aug 18, 2024 | General

On July 24, 2024, Governor DeWine signed S.B. 168 which seeks to relax burdensome regulations for schools. The law which becomes effective on October 21, 2024, contains a provision that should be of particular interest to career-technical centers. After that date, such programs must permit students in early childhood preparation programs to receive pay for hours worked completing their required training or field experience hours.

Specifically, new RC 3345.205 covers “early childhood teacher preparation programs,” including those based in career-technical centers, joint vocational school districts, comprehensive career-technical centers, and compact career-technical centers. The act provides that early childhood teacher preparation programs that result in credentials such as a child development associate certification or college degrees shall permit a student of that program to complete required student training as paid employees. The provision mandates that such programs may not prohibit students from being paid.

What this means for CTCs: As the school year begins and before the legislation becomes effective, career-technical centers should review their policies to make certain that they are compliant.

The Power of Punctuation: Debate Over Grammar Leads Ohio Supreme Court to Limit Executive Sessions for the Purchase of Property

The Power of Punctuation: Debate Over Grammar Leads Ohio Supreme Court to Limit Executive Sessions for the Purchase of Property

by | Aug 18, 2024 | Board Policy & Representation, General

Look Ahead Am. v. Stark Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-2691.

On July 18, 2024, the Ohio Supreme Court determined that the Stark County Board of Elections misused executive sessions to discuss and plan the purchase of new property, specifically voting equipment. A company filed a complaint based on the Board’s decision to enter executive sessions on four separate occasions to discuss and plan for the purchasing of new voting systems. Both lower courts upheld the Board’s decisions after concluding that executive sessions were permitted for any purchase of property, but the Ohio Supreme Court disagreed. Reversing the decision, the Court clarified that executive sessions are permitted to discuss the purchase of property only to consider information “which would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”

Ohio’s Open Meetings Act permits a public body to enter executive session for the following reasons:

To consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with R.C. 505.10, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

The courts agreed that the statute had a plain meaning, but they disagreed over what, exactly, that plain meaning was. According to the Supreme Court, the difference is based on punctuation and the rules of grammar. The lower courts both relied on the “rule of the last antecedent,” which applies a limiting clause or phrase to the noun or phrase that it immediately follows. Using that rule, the courts argued that the premature-disclosure clause only applied to the sale of unneeded, obsolete, or unfit-for-use property.

However, the statute’s use of commas modifies the rule of the last antecedent. Relying on several leading treatises on statutory interpretation, the Ohio Supreme Court argued that separating the antecedents and the qualifying phrase by a comma is evidence that the qualifier is supposed to apply to all antecedents. Under this interpretation, the premature-disclosure clause applies to every listed reason to start an executive session involving property, including the purchase of property, and not just the last reason as the lower courts suggested.

What this means for your district? This is yet another reminder that Districts must review and understand the public meeting exceptions rather than rely on memory and past practice. While Districts often recess into executive session to discuss property purchases, Districts cannot call executive sessions to discuss such purchases unless they can show that the premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

Supreme Court Reminds Districts to Triple-Check Their Evaluation Procedures

Supreme Court Reminds Districts to Triple-Check Their Evaluation Procedures

by | Aug 18, 2024 | General, Labor and Employment

Jones v. Kent City School Dist. Bd. of Edn., Slip Opinion No. 2024-Ohio-2844.

On July 31st, 2024 the Ohio Supreme Court ordered the Kent City School District to reinstate a teacher after determining that the Board of Education failed to complete three formal observations as is required by the Ohio Teacher Evaluation System (“OTES”), and therefore was not able to non-renew his employment.

Jones had been employed by the district for roughly twenty years and began having disciplinary issues during the 2019-2020 school year. He repeatedly left early from work and failed to complete assigned tasks during teacher workdays. Following an absence where Jones failed to notify the administrators of his absence and failed to schedule a substitute pursuant to district procedures, the Board notified Jones that he would be placed on a “full cycle” evaluation and that he was being considered by the Board for nonrenewal.

Under state law, specifically R.C. 3319.111(E), school boards are required to complete at least three formal observations of any teacher employed under a limited contract if the school board is considering nonrenewal of that contract. While school boards and teachers’ unions are free to establish local standards for following the evaluation procedures, boards are still required to follow the mandatory procedures established by the General Assembly, and those statutory requirements prevail over any conflicting terms of a collective-bargaining agreement.

The evaluator in this case finished the first evaluation without any difficulties, but the COVID-19 pandemic shut down schools and shifted classes online before the second evaluation could be carried out. In response to the pandemic, the General Assembly allowed districts to drop evaluation requirements provided they agree to renew the teacher’s contract. Not wanting to reemploy Jones, the district decided to proceed with the evaluation process after they reached an agreement with the teachers’ union to allow observations to be completed virtually through distance learning. Following the agreement, a second observation took place virtually and a third was scheduled. Jones was unavailable for the third observation due to a medical emergency. He was later excused for the rest of the year by his doctor. Rather than reschedule, the evaluator moved forward with the observation in Jones’s absence by sitting in on a virtual learning session with Jones’s class.

The board unanimously approved Jones’s nonrenewal following the evaluation process, and Jones appealed the decision. Because he was not present for the final observation, Jones argued that the process violated R.C. 3319.111(E). The Ohio Supreme Court agreed. According to the Court, the plain language of the statute requires three observations of the teacher who is under consideration for nonrenewal, regardless of any agreement between the Board and the teachers’ union. It was undisputed that Jones was not present for that final evaluation. Therefore, the Court concluded that the board could not rely on Jones’s excused medical absence to justify their noncompliance with the statute.

What this means for your district? It is critical that school districts plan ahead if a teacher is up for non-renewal. As this case demonstrates, and as previous cases have held, even pandemics and doctors’ notes do not excuse a district’s evaluation requirements for non-renewals. This includes the completion of at least three observations of the teacher while they are actually engaged in teaching.

Back to School Reminders For School Transportation Administrators

Back to School Reminders For School Transportation Administrators

by | Aug 18, 2024 | General, Transportation

Deadlines and timelines:
1. All school bus and van driver physicals must be renewed and submitted to the DEW before August 31. DEW will send out “inactive” notices for any driver without a new physical on Sept. 1. Inactive drivers will not be able to legally operate a school bus or van.
2. T-2 reports are due on or before August 31. These are fiscal summaries of the transportation you provided during the previous school year and are an important part of your school transportation funding.
3. ORC and OAC require that school boards approve bus stops and a routing time schedule within 10 days of the start of school. Boards may take this action up to 30 days in advance of the school year.
4. School bus rider safety training for all students in grades K-3 that ride must be provided within the first 14 days of your school year.
5. If you receive late enrollment information (anything after July 1) for students attending nonpublic or community schools, ORC requires the district to provide a transportation plan (if eligible) within 14 days of receiving notification.

FMCSA announces compliance audits for 2024: DEW sent out a notice this spring that the Federal Motor Carrier Safety Administration (FMCSA) is initiating a school bus transportation safety initiative during 2024. Field agents for FMSCA (or PUCO) will focus on auditing compliance with federally-applicable school bus driver regulations. The audits will include checking for compliance with:
• Pre-employment testing requirements including Drug and Alcohol Clearinghouse queries
• Annual query requirements for Clearinghouse information
• Random drug and alcohol testing administration
• Evaluation of return to duty processes when applicable
• Post accident testing procedures and administration when applicable
• Reasonable suspicion training and testing administration
• Driver qualifications associated with CDL compliance standards
If you are contacted by someone claiming to represent FMCSA, you may verify the validity of any contact by contacting the Ohio Division by email at MCOHOFF@dot.gov or at (614) 280-5657.

If you have questions about any of these areas or are not certain if you are following the requirements, now is the time to resolve those issues. Contact Transportation Consultant Pete Japikse at schoolbus@ebconsultinggroup.com.

6th Circuit Temporarily Pauses Implementation of New Title IX Regulations

6th Circuit Temporarily Pauses Implementation of New Title IX Regulations

by | Jun 19, 2024 | General, Legislation

Tennessee v. Cardona, 2024 U.S. Dist. LEXIS 106559

A federal district court judge in Kentucky issued a preliminary injunction on June 17, 2024 against the Department of Education’s new 2024 Title IX regulations that are set to go into effect on August 1, 2024. The injunction issued by the Kentucky judge is limited to the six plaintiff-states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. There are multiple other lawsuits across the country with pending motions for preliminary injunctions that also may impact when the Department’s Title IX Final Rules will go into effect.

The Final Rules released by the Department in April include an expanded definition of “discrimination on the basis of sex” based on the U.S. Supreme Court’s ruling in Bostock v. Clayton Cty., 590 U.S. 644, 681–83 (2020), that seeks to prohibit discrimination on the basis of sexual orientation or gender identity in a Title VII case. The federal district court held that the new regulations will dramatically alter the purpose and meaning of Title IX, and issued a preliminary injunction to pause the implementation of the 2024 Title IX regulations until the case may proceed further for the following reasons:

  • The Department’s interpretation likely exceeds its statutory authority,
  • The Department’s actions were arbitrary and capricious,
  • The Department’s reading goes against the major questions doctrine,
  • The Clear statement rule under the Spending Clause weighs against the new Title IX regulations,
  • The Plaintiffs raised valid First Amendment free speech concerns, and
  • The Department’s reading likely violates parental rights.

According to the court, the original goal of Title IX was to ensure that women have an equal opportunity to aspire, achieve, and participate in society based on their individual talents and capacities, and that before the last decade, the words “sex” and “discrimination on the basis of sex” had universally been understood to refer to biological sex under the statute. The court disagreed with the Department’s reliance on Bostock. The majority in Bostock claimed the decision did not apply beyond Title VII to other federal laws that prohibit sex discrimination, and the dissent warned about how the ruling could be misapplied in the school context. 

Citing last week’s different decision in Texas, in which a federal district court in the 5th Circuit enjoined the Department’s 2021 guidance, the court reminded the Department that federal agencies “…lack the authority to rewrite clear statutory terms to suit its own sense of how the statute should operate.” Texas v. Cardona, 2024 U.S. Dist. LEXIS 103452, at 85.

For purposes of Title IX, the court found that the term “sex” unambiguously refers to biological sex, and that Congress did not implicitly delegate its authority to change or expand that meaning to the Department. Similarly, Title IX was enacted as an exercise of Congress’ power under the Spending Clause which requires the government to condition the receipt of federal funds “unambiguously” so that states may be cognizant of the consequences of their participation and exercise their choice knowingly. South Dakota v. Dole, 483 U.S. 203, 207 (1987). But the court found that the Final Rule’s language provides no indication that an institution’s receipt of federal funds is conditioned on any sort of mandate concerning gender identity.

Lastly, the court cautioned that the new Title IX regulations may infringe on the constitutional rights of students, staff, and parents. The court found that the Final Rules require districts to treat children consistent with their gender identities on school grounds, even if that conflicts with parental preferences.  The court cautions that the Department’s reading of Title IX may require districts to enter the “private realm of family life” that has been afforded both substantive and procedural protections.

What this means for your district

The preliminary injunction issued by the federal district judge in Kentucky within the 6thCircuit this week pauses the Title IX Final Rules implementation in the six states involved, including Ohio, but only temporarily. As the case progresses to a full hearing, the injunction may be lifted or a permanent injunction could be issued. There is also potential that one of the other pending lawsuits impacts how the Final Rules are implemented. We may not have a definitive answer on compliance with the new Title IX regulations until these cases make their way through the court system. In the meantime, districts should continue to prepare for the new rules, even if they are currently delayed, to ensure they are prepared to implement Title IX provisions if and when they go into effect. This decision does not reverse or modify the 6th Circuit precedent concerning Title IX and students within K-12 schools. Consult your legal counsel.

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

by | Jun 19, 2024 | General, Special Education

B.P.J. v. W. Va. State Bd. of Edn., 98 F.4th 542 (4th Cir. 2024).

On April 16, 2024, the 4th Circuit Court of Appeals issued a split decision holding that West Virginia’s Save Women’s Sports Act (the Act) violated Title IX as applied to the plaintiff. The 2022 state law prohibited transgender girls from competition in girls and women’s sports in K-12 and college athletics throughout the state. After the Act went into effect, B.P.J., a transgender girl, was no longer allowed to compete on the middle school cross-country team. She sued the State Board of Education and local public school district, alleging that the Act violated the Equal Protection Clause of the Fourteenth Amendment and violated Title IX.

Beginning with the Equal Protection claims, the court applied intermediate scrutiny to the Act after determining that it constituted sex-based discrimination. The State’s position was that the law was enacted for the purposes of “participant safety” and “competitive fairness” to justify the Act’s treatment of transgender girls. The court questioned how B.P.J.’s exclusion from the cross-country team was substantially related to either of those interests. The facts of the case were that B.P.J. played a non-contact sport, so the court failed to see a participant safety issue. Additionally, the majority reasoned that B.P.J.’s early transition and prolonged use of hormone therapy called into question whether she enjoyed a competitive advantage over her cisgender peers. Since the parties disputed whether those assigned male at birth enjoyed a competitive advantage over cisgender girls, the court ordered further proceedings to debate the issue.

The public school tried unsuccessfully to argue that it should not be held liable since it was complying with the state law, rather than district policy that violated Title IX. While true, a federal law such as Title IX supersedes the district’s obligations to the state. After quickly dismissing the district’s argument, the court warned that mere compliance with a state law is not a legitimate defense to a Title IX violation.

According to the court, the Act discriminated against and caused harm to B.P.J. in violation of Title IX. The Act prohibited only one category of students, transgender girls, from competing on teams with their corresponding gender. The majority further explained that the state should not expect B.P.J. to go against her social transition to play on the boys’ team, and that the Act risked exposing her to the same level of unfair treatment that West Virginia claimed it was trying to prevent for cisgender girls because of B.P.J’s hormone treatments. The court was careful to note that its holding was a limited ruling on the Act as applied to B.P.J., and that it was not holding that Title IX required every transgender girl to play on a girls’ team.

What this means for your district
It is important to note that this decision applies only to the 4th Circuit. The ruling is limited to its facts as applied to a specific student playing a specific sport, and is not a blanket requirement that all transgender girls be allowed to compete on girls’ sports teams under Title IX. However, Title IX is a federal law and must be followed regardless of jurisdiction. Several states, including Ohio, have adopted similar legislation to West Virginia’s Save Women’s Sports Act. Conflict between these laws and Title IX may force districts into a situation where state compliance risks exposing them Title IX liability.